In re Estate of Hector Mario Tercero Munoz, Deceased--Appeal from 229th Judicial District Court of Duval County

MEMORANDUM OPINION

No. 04-06-00850-CV

IN THE ESTATE OF HECTOR MARIO TERCERO MUNOZ, Deceased

From the 229th Judicial District Court, Duval County, Texas

Trial Court No. DC-05-177

Honorable Alex William Gabert, Judge Presiding

Opinion by: Phylis J. Speedlin, Justice

Sitting: Catherine Stone, Justice

Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: December 28, 2007

REVERSED AND RENDERED IN PART; DISMISSED IN PART

Yanira Franco, as next friend of Jairo Alan Franco, appeals the trial court's order in a probate matter. The trial court transferred the underlying case to probate court in Brewster County and dismissed the pleadings filed by Franco without prejudice to filing them in a court of proper jurisdiction and venue. In two points of error, Franco contends: (1) the trial court erred in transferring venue; and (2) the trial court erred in dismissing Franco's pleadings. We reverse the portion of the trial court's order dismissing Franco's pleadings and render judgment that those pleadings are transferred to Brewster County. Because the trial court's order transferring venue to Brewster County is not an appealable order, we dismiss that portion of the appeal for lack of jurisdiction.

Hector Mario Tercero Munoz died on April 18, 1994, at a hospital in Brewster County, Texas, where he was taken for treatment of injuries he sustained in an automobile accident in Mexico. On December 21, 1995, Diana Marquez, Munoz's common-law wife, filed an agreed second application for appointment of temporary administratrix in the Duval County Court, seeking to be appointed temporary administratrix with limited powers to represent Munoz's estate in connection with a lawsuit arising out of the automobile accident. On December 21, 1995, the Duval County Court entered an agreed order appointing Marquez as temporary administratrix with the limited power to take action in regard to the lawsuit. The order stated that the temporary administration continued in force "for such period of time as the Court deems in the interest of the estate not to exceed 180 days, or to be made permanent, as found by the Court to be necessary."

Almost ten years later, on July 18, 2005, Franco, the mother of Munoz's illegitimate son, filed a Motion to Remove Administrator and Require Final Accounting and Application for Letters of Administration in the Duval County Court. Franco sought to have Marquez removed as temporary administratrix, stating Marquez "took possession of property of Decedent's estate, [but] she has filed no accountings with the Court and has converted all estate property to her own use." Franco stated that a necessity existed for the administration of the estate because the court needed to collect property of the estate and partition the estate among the heirs, and Franco requested to be appointed as successor administratrix and to have letters of administration issued to her. Franco also filed a motion to transfer the proceeding to the Duval County District Court for resolution of all contested matters.

After the proceeding was transferred to district court, Marquez filed an opposition to the motion and application. Marquez asserted the temporary administration expired 180 days after December 21, 1995. Marquez further asserted that the proper venue for the application requesting the appointment of a permanent administrator was Brewster County. Marquez also listed numerous reasons the request for the appointment of a permanent administrator should be denied.

On February 9, 2006, Franco filed a waiver and renunciation, seeking to have the letters of administration issued to Chris Waller, a licensed attorney, instead of to her. The same day, the trial court held an initial hearing on Franco's motion and application, permitted briefing on the issues pending, and took the matter under advisement.

On March 14, 2006, Franco filed a petition to establish paternity of Munoz's illegitimate son, Jairo Alan Franco. On June 9, 2006, Marquez filed a plea to the jurisdiction, motion to transfer venue, and response to the paternity petition. A hearing on the paternity petition was held on June 20, 2006, and evidence was presented through DNA testing that the probability of Munoz's parents being Jairo's grandparents was 99.989%. The trial court stated that the issues of jurisdiction and venue would be ruled upon by written submission.

On September 7, 2006, the district court entered an order granting Marquez's plea to the jurisdiction and motion to transfer venue. The district court transferred the case to probate court in Brewster County. The district court also dismissed Franco's motion, application and petition to establish paternity (the "Pleadings") without prejudice to filing them in a court of proper jurisdiction and venue.

The trial court's order combines two separate rulings: (1) the granting of Marquez's plea to the jurisdiction; and (2) the granting of Marquez's motion to transfer venue. As a result, the trial court's order grants inconsistent relief, i.e., if the trial court lacked jurisdiction, it could not grant the motion to transfer venue.

A challenge to the trial court's subject matter jurisdiction presents a question of law that we review de novo. Garza v. Rodriguez, 18 S.W.3d 694, 696 (Tex. App.--San Antonio 2000, no pet.). "Any court in which there has been filed an application for proceedings in probate shall have full jurisdiction to determine the venue of such proceeding." Tex. Prob. Code Ann. 8(e) (Vernon Supp. 2007). It is undisputed in this case that Franco had filed an application for proceedings in probate in an appropriate court in Duval County. As a result, the trial court had jurisdiction to determine the appropriate venue of that proceeding and erred in granting Marquez's plea to the jurisdiction. Therefore, we sustain Franco's second issue and reverse the portion of the trial court's order granting the plea to the jurisdiction and dismissing Franco's Pleadings.

Having reversed the trial court's dismissal of Franco's Pleadings, the only remaining issue is whether the trial court properly transferred venue of the underlying proceeding to Brewster County. We do not, however, have jurisdiction to consider that issue. See, e.g., In re Estate of Fears, No. 06-03-00139-CV, 2004 WL 111423, at *1-2 (Tex. App.--Texarkana Jan. 22, 2004, no pet.); In re Guardianship of Murphy, 1 S.W.3d 171, 172 (Tex. App.--Fort Worth 1999, no pet.); Forlano v. Joyner, 906 S.W.2d 118, 120 (Tex. App.--Houston [1st Dist.] 1995, no writ); Grounds v. Lett, 718 S.W.2d 38, 39 (Tex. App.--Dallas 1986, no writ); see also De Ayala v. Mackie, 193 S.W.3d 575, 578-79 (Tex. 2006) (citing Forlano and noting its holding that a venue transfer order was not severable). Accordingly, we dismiss the portion of the appeal challenging the venue determination for lack of jurisdiction. See In re Estate of Trevi o, 195 S.W.3d 223, 226 (Tex. App.--San Antonio 2006, no pet.) (dismissing portion of appeal challenging probate court's ruling on motion to recuse).

The portion of the trial court's order dismissing Franco's Pleadings in the underlying proceeding is reversed, and judgment is rendered that the pending Pleadings are transferred with the underlying case to probate court in Alpine, Brewster County, Texas. The portion of the appeal challenging the trial court's order granting the motion to transfer venue is dismissed for lack of jurisdiction.

Phylis J. Speedlin, Justice